Attorney-general Anambra State V. Ephraim Okeke (2002)

LAWGLOBAL HUB Lead Judgment Report

E. O. AYOOLA, JSC. 

This is an appeal from the decision of the Court of Appeal [Achike, Ejiwunmi and Tobi, JJ.C.A (as they then were)] committing the 2nd, 3rd, 4th 5th and 6th appellants (referred to in this judgment as “defendants”) to prison for two months or to pay a fine of N500.00 each. The back-ground facts. On 16th December 1993 the respondents in this appeal (referred to in this judgment as the plaintiffs”) who had obtained an order of interim injunction against the defendants brought an application for committal of the defendants for their disobedience of the order. On 20th December 1993 counsel for the plaintiffs withdrew the application against the 2nd and 5th defendants who had not been served. Those defendants were accordingly struck out from the application. The matter, then before Egbue, J., was adjourned to 21st of January 1994 for further hearing. By that date the matter had come before Anijah-Obi, J., who on 2lst March 1994 heard arguments as to the order in which the two motions then before him, namely: one by the defendants to strike out the plaintiffs’ suit for want of locus standi and the other by the plaintiffs to commit the defendants to prison, should be heard. On 13th April, 1994 he ruled that he would hear the latter first.

However, in the meantime, on 12th April, 1994 counsel for the defendants had filed a notice of objection to the committal application on the ground of non-compliance with the provisions of O. 1 r. 14 of Judgment (Enforcement) Rules. Anijah-Obi, J., heard arguments on the objection on 13th April, 1994. On 10th June, 1994 he delivered a ruling upholding the objection and struck out the application for committal. The appeal to the Court of Appeal. The plaintiffs appealed to the Court of Appeal contending, in the main, that there was substantial compliance with the Judgment (Enforcement) Rules made under the Sheriffs and Civil Process Law and also that the trial judge should have committed the defendants on the materials before him. Counsel for the defendants responded to the former of those contentions but was silent on the latter in his brief of argument. The court below held that there was full compliance with 0.9 r. 13(2) of the Judgment (Enforcement) Rules and that all conditions precedent to issuance of Form 49 were met. Having so held, it reminded itself of its powers under section 16 of the Court of Appeal Act 1976 which, inter alia, provided that the Court of Appeal “generally shall have full jurisdiction over the proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing.” Purporting to re-hear the appeal on the records, Achike, JCA., (as he then was) who delivered the leading judgment of the court below said: “In this regard, I have already examined and evaluated the affidavit evidence placed before the trial court and which is now before us and have come to the conclusion that the case of disobedience of the order made by Ezeani, J., on 11/2/93 has been established and substantiated beyond reasonable doubt, that is to say, that the acts of disobedience of the said order of the lower court have been proved to the hilt separately and against each of the 2nd, 3rd, 4th, 5th and 6th respondents.

In exercise of the powers vested in this Court by virtue of section 16 of the Court of Appeal Act, 1976, I hold that each of 2nd, 3rd, 4th, 5th and 6th respondents has failed to obey the said order of the Court. Accordingly, I order and commit each of the aforesaid.” With that view Ejiwunmi, JCA. (as he then was) and Tobi, JCA. agreed. In the result, the court below made an order committing the 2nd to 6th defendants to prison with options of fine. The three, appeals before this court. Against the decision there are now before us three appeals, respectively, (i) by the Attorney-General of Anambra State who was the 1st defendant in the suit in which the order of interim injunction was made, but against whom neither was the order of interim injunction nor of committal made and who was not a party to the committal application; (ii) by the 3rd, 4th, and 6th defendants against whom the orders of interim injunction and committal were made and who were parties to the committal proceedings; and, (iii) by the 2nd and 5th defendants who, though parties against whom the interim order was made, had been struck out of the committal proceedings and had therefore ceased to be parties to those proceedings when the order of committal was made. Was there non-compliance with the Judgment (Enforcement) Rules? The trial judge in upholding the preliminary objection raised to the committal proceedings had held that there was no proof of personal service of Form 48 on the 2nd – 6th defendants and that, even if personal service had been effected on them, what was served on these defendants were not exhibited. He further held that: (i) these defendants could not have disobeyed any order of court on the 13th day of February 1993, they having not been duly served with the Order with Form 48 before that date; and (ii) that the plaintiffs have failed to comply with 09 r 13(2) of the Judgment (Enforcement) Rules which required the service of a notice in Form 48 on the judgment debtor not less than two clear days after service of the endorsed copy of the Order. The court below disagreed with the trial court and held that there had not been a non-compliance with the provisions of the Judgment (Enforcement) Rules. A common contention of all the defendants in this appeal is that the court below was wrong in not holding that the plaintiffs failed to comply with the Judgment (Enforcement) Rules in bringing the committal proceedings. The 2nd and 5th joined the others in raising that contention, but as would be seen they needed not to. The affidavit in support of the plaintiffs’ application for committal of the 2nd – 6th defendants contained depositions to the facts that drawn-up order with Form 48 endorsed therein was served on each of these defendants (para. 5); and, that each of the defendants was personally served (para. 6). The court below referred to those paragraphs of the affidavit and the affidavit of service of Form 48 on these defendants sworn by the bailiff. There were, according to the court below, affidavits of service contained in the court file which the court would take judicial notice of. It was after it had meticulously considered the affidavits and all other points of objection canvassed by counsel for the defendants and had found those points wanting in substance that the court below set aside the decision upholding the preliminary objection.

The decision of the court below has been criticised on several scores: first, that that court should not have given “credence and weight” to paragraphs 5 and 6 of the affidavit in support of the plaintiffs’ application when the deponent was not a bailiff; and, secondly, that although proof of service by the bailiff, in accordance with 0.7 r. 16 of the High Court Rules of Anambra State shall be by production of a Certificate of Service signed by such bailiff, no such certificate was produced by the plaintiffs. In my view, there is no substance in any of these criticisms. The defendants did not file a counter-affidavit to deny the facts deposed to by the plaintiffs that they were each served personally with endorsed Form 48. The contention that the court below should not have given credence and weight to the paragraphs of the affidavit wherein those facts were deposed to is misconceived since those paragraphs were not denied. The point was clearly put in the concurring judgment of Tobi, JCA. (as he then was) as follows: “The respondent did not file a Counter-affidavit contesting the veracity of the above depositions. This court is therefore entitled to presume that they have no reply and that they agree with them. This is because affidavit evidence not denied by a respondent is deemed to be admitted. In Onagoruwa v. Adeniji (1993) 5 NWLR (Pt 293) 317;……..” I agree with him. I also agree with Tobi, JCA. (as he then was) that where service of a court process is in dispute a bailiff can discharge the burden by swearing to an affidavit of service. I add that where a Certificate of Service in terms of 07 r 16 of the High Court Rules of Anambra State is produced, its production also serves the purpose of proof of service, but that does not mean that it is an exclusive means of proof of service.

The Court below was further criticised for making use of the affidavit of service in the file. It was argued that taking judicial notice of such document was contrary to section 74 (3) of the Evidence Act which provides that: “If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.” (Italics mine) It is evident that it is at the discretion of the court whether or not to refuse to take judicial notice of the fact in question unless and until the production of particular book or document. I am in agreement with the position taken by the court below that the court will take judicial notice of its own proceedings and records and also their contents. (See Osafile v. Odili Ltd. (1990) 3 NWLR (Part 37) 130). Where in a proceeding the question arises whether or not a process of court has been served in the proceeding, it will be a strange thing were the court to ignore the proof of service afforded by its own record in the proceeding and hold that such process has not been served. A different circumstance would arise were the question of service to arise in a different proceeding; or, were the authenticity of what was filed on record or its adequacy be in issue. But that was not the case here. I am in entire agreement with Tobi, JCA, (as he then was) who qualified the general proposition that the court is entitled to make use of any document or document in its file when he said: “There is one basic qualification of this principle of law and it is that the document or documents must have undergone the litigation process or the process of adjudication by the Court or the parties have mutually come to an agreement as to their status in the litigation.”

However, that qualification does not take an affidavit of service filed on record out of the general proposition that the court is entitled to make use of document or documents in its file. An affidavit of service of a court process is normally a non-contentious document required to be put on record for information of the court and the parties as to the fact and date of service of a process in the proceeding. It cannot be a reasonable proposition that in that same proceeding in which it was filed the law requires that that self-same document should be proved before the court before it can be relied on. I find no substance in the appeal against the decision of the Court of Appeal setting aside the decision of the trial court, striking out the application for committal. The appeals of the 3rd, 4th and 6th defendants must fail to that extent only. The appeal of the 2nd and 5th defendants: Should an order of committal have been made against these defendants who were not parties to the committal proceedings?. The real crux of the appeal of the 2nd and 5th defendants is, whether they having been struck out of the proceedings by Egbue, J., the court below should have made an order of committal against them. A number of incidental questions arise from the arguments advanced before us which will presently be attended to. Were the 2nd and 5th appellants proper1y named as parties to the appeal in the court below? The 2nd and 5th defendants were named as respondents in the appeal in the court below and were also each served with a notice of appeal. Technically, they became parties to the appeal by virtue of 0.7 r. 5 and 0.7 r. 6 of the Court of Appeal Rules. However, they were wrongly named parties because (i) although by virtue of 0.7 r. 5: “The Registrar of the Court below shall, after the notice of appeal has been filed, cause to be served a true copy thereof upon each of the parties mentioned in the notice of appeal”, the same rule also provides that: “It shall not be necessary to serve any party not directly affected.” In this case the 2nd and 5th defendants having ceased to be parties to the application for committal were not parties who could have been affected by whatever decision the trial court could take on the preliminary objection and in the committal proceedings.

The plaintiffs have not contended that the 2nd and 5th defendants were properly made parties to this appeal. Counsel on their behalf argued that no issue competence of the appeal was raised in the appeal in the court below. He argued that since 2nd and 5th defendants were not parties in the appeal in the court below, their appeal to this court as parties is incompetent because they could not appeal as parties and have not sought leave to appeal as persons having an interest in the matter in terms of section 213(5) of the 1979 Constitution. The court below may have been misled by counsel for the 2nd and 5th defendants into believing that those defendants were properly mentioned as parties to the appeal. Instead of moving to have the notice of appeal served on them set aside, a brief of argument was filed on their behalf, albeit jointly with proper defendants, in which the opening statement was that: “The appeal arose from an application by the plaintiff/Appellants……for the committal of the 2nd to 6th Defendants/Respondents…….(Emphasis mine) Be that as it may, at no stage were the 2nd and 5th defendants re-joined as parties to the committal proceedings although they remained parties to the main suit with which the appeal was not concerned. Their silence about the true state of affairs could not in my opinion have converted them to proper parties. Whether a person has been properly named as party to an appeal or not is not determined by acquiescence but is a matter of law determined by whether such person was a party to the proceedings, in which the decision appealed from was made; or, whether he was a person directly affected by the decision; or, was a person who, though not a party to the proceedings has been made a party by order of court. I hold that notwithstanding that the 2nd and 5th defendants did not raise the question of the competence of the appeal against them in the court below, it is a point which can properly be raised on this appeal because an appellate court will not exercise jurisdiction over a person who is not a party to the proceedings without first properly bringing him into the proceedings.

The 2nd and 5th appellants not being proper parties to the appeal in the court below, is their appeal to this court competent? The question whether the 2nd and 5th defendants’ appeal to this court is incompetent bears some attention. Although they were mentioned as parties in the court below, whereas they were not so properly named, they remained parties for the purpose of invoking the jurisdiction of this court to set aside an order resulting from their improper inclusion as parties. They were in this regard, parties to the proceedings for the purpose of section 213(5) of the 1979 Constitution which provided that: PAGE 4 “Any right of appeal to the Supreme Court from the decisions of the Federal Court of Appeal conferred by this section shall be exercisable in the case of civil proceedings at the instance of a party thereto…..” The principal question: Was the order of committal rightly made against these defendants? By the time the appeal went to the court below, the 2nd and 5th defendants having ceased to be parties to the committal application, were not parties in respect of whom the court below could exercise powers pursuant to section 16 of the Court of Appeal Act. The orders of committal made against the 2nd and 5th defendants were thus made in error and should be set aside. In the result, I would allow the appeal of each of these defendants. The appeal of the 3rd, 4th and 6th defendants: Should the Court of Appeal have proceeded to determine the application for committal? As regards the 3rd, 4th and 6th defendants, the main question is whether having set aside the decision of the trial judge, the court below should have embarked on a consideration of the application on its merits. Section 16 of the Court of Appeal Act gives the Court of Appeal “full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of Appeal as court of first instance and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing”. This appeal brings once again into question the true scope of powers of “full jurisdiction” given to the Court of Appeal under section 16 of the Court of Appeal Act. Counsel for the plaintiffs referred to instances in which the Court of Appeal had usefully exercised such powers.

Since none of the cases he cited, except Okotie-Eboh & Ors v. Okotie Eboh & Ors (1986) 1 NSCC (Part 1) 183, comes near the circumstances of this case, no useful purpose is served by discussing those cases. It is not disputed that the Court of Appeal has ample powers under section 16. However, no one will suggest that those powers are unlimited. The question is what are the limits of those powers? Such limits are to be determined case by case and not by a priori general propositions. The court below, as did counsel for the plaintiffs before us in this appeal, relied on Okotie-Eboh & Ors v. Okotie-Eboh & Ors (supra) for the jurisdiction it exercised to determine the committal application on its merits. The question is whether that case is authority for the exercise of such jurisdiction in this case. The facts of Okotie-Eboh case (supra) only appear similar to those of this case, but they are not. In that case the appellant applied for a stay of proceedings in a matter in the High Court of Lagos State in which the appellant and some of the respondents were parties. The respondents raised an objection that since the appellant was relying on a writ of summons which had been filed in another action between the parties in support of his application for a stay of proceedings, the photocopy of the writ of summons attached to the affidavit was inadmissible as evidence of the filing of the writ of summons and, as such, there was no evidence of the writ of summons before the court. The trial judge allowed the preliminary objection and dismissed the application without hearing further argument. The appellant appealed to the Court of Appeal which allowed the appeal on the ground that the trial judge ought to have heard the application.

The Court of Appeal then, itself, heard the application on its merits and dismissed it. The appellants appealed further to this court, contending that the Court of Appeal acted without jurisdiction in rehearing the application, when there had been no hearing or decision in the High Court in the first place. This court held, dismissing the appeal, that the general purport of powers of the Court of Appeal under section 16 was to enable that court to exercise all the powers of a court of first instance and that the Court of Appeal exercising power under section 16 was quite competent to determine the application even without a prior hearing in the court below. Although the broad circumstances of the Okotie -Eboh case look similar to the circumstance of this case, a closer look at both shows a very material difference. The ground of the decision in Okotie-Eboh’s case which makes the difference is manifest in the leading judgment delivered by Karibi-Whyte, JSC, at p 190 of the Reports where he said: “The respondents have contended that the issue before the Court of Appeal was whether the application of appellant, though dismissed without hearing, was dismissed on its merits. A hearing may be said to be on the merits where the issues of fact or law or both, between the parties are fought out to a final conclusion binding upon the parties. The preliminary objection which resulted in the dismissal of the application without a hearing was that the application for a stay of proceedings have (sic) not been supported by any admissible evidence of the filing of another writ of summons on which appellant relied for his application…..the learned judge dismissed the application because there was no evidence in support. I think this is a hearing of the application on its merits. There is no way the preliminary objection would have been argued without a consideration of the application on which it is based. It is conceded that not all aspects of the application for stay of proceedings might have been considered in the objection, nevertheless since consideration of the point of law finally decided the rights of the parties, it was a decision on the merits. It follows therefore that there was before the Court of Appeal, an appeal against a decision on its merits.” (Emphasis mine) While in Okotie Eboh’s case the trial court had decided the matter on its merits, that is not the position in the present case. There is, evidently, much danger to the orderly development of our laws in citing and relying on authorities without adequate attention to the exact nature of the proposition such could support.

Nothing in Okotie-Eboh’s case supports a general proposition that in all cases where a matter is struck out as being improperly brought, the Court of Appeal upon setting aside the order striking it out can proceed to determine the matter on its merits. There may be cases in which, from the circumstances, it may be expedient to do so without injustice to the parties. This case where an issue of the liberty of the citizen is involved will, in my view, not fall within the category of such cases. Each case should be considered with reference to its own circumstances. In this case the preliminary objection was filed before the date fixed for the hearing of the application for committal on its merits. By reason of the notice of objection the application was not heard on its merits but was struck out. Unlike the case of Okotie-Eboh there was no determination of the application on its merits. It is not impossible that had the trial judge overruled the objection the defendants might have sought to file counter affidavits to contest the merit of the application, in view of the fact that their preliminary objection related only to procedural conditions precedent to the bringing of the application which they contended were not performed. PAGE 5 There is no doubt that had the High Court overruled their preliminary objection, they would have been entitled to be heard fully on the application and bring before the trial court whatever evidence they considered helpful for their defence. They certainly would not have expected the trial judge to proceed to determine the application on the merits in the same ruling in which he over-ruled their objection. The trial judge could not have done so without occasioning a miscarriage of justice. One incontestable limit to the power of the Court of Appeal to assume full jurisdiction over the whole proceedings is that such first instance jurisdiction exercised by the Court of Appeal pursuant to section 16 does not include what the trial court could not have done. Enough, I believe, has been said to show what the court below should not have proceeded to determine the application on its merits and thereby deny the defendants of the options available to them of mounting a defence to the application on the merits. For these reasons I would allow the appeal of the 3rd, 4th and 6th defendants to the extent only that the order of committal made against them should be set aside. The appeal of the 1st defendant, the Attorney-General of Anambra State. The Attorney-General Anambra State who was the 1st defendant has also appealed. He submitted as the only issue for determination the following question: “Whether the Court of Appeal (taken as the trial court pursuant to section 16 of the Court of Appeal Act, 1976) lacked the jurisdiction ab initio to convict and sentence any party for contempt without first disposing of the issue of jurisdiction raised in the substantive suit.” It is difficult to see how, in the first place, the 1st defendant could properly be an appellant in this matter since although he was a nominal 1st defendant in the substantive suit he was not a party to the committal proceedings and no order was made against him by the court below. Beside, the issue of jurisdiction was not raised in the court below there being no appeal against the decision of the trial judge that he would take the committal application before determining the motion relating to the standing of the plaintiffs to file the suit. That the 1st defendant dressed the issue in this court as a jurisdictional issue makes no difference. The 1st defendant had striven to establish his right to appeal and to justify the issue he raised for determination. However, it is not necessary to prolong the matter by discussing these issues and determining them in view of the fact that the appeals of the other defendants, particularly the 3rd, 4th and 6th defendants will be allowed and the order committing them to prison will be set aside and in view of the consequential orders that will follow.

In the result, I allow the appeals of the 2nd to 6th defendants to the extent stated. I set aside the order of committal made by the Court of Appeal against them in its entirety, including the order as to costs. I order that the application for committal be remitted to the High Court of Anambra State to be heard on its merits, but in regard to the 3rd, 4th and 6th defendants only, the 2nd and 5th defendants having been struck out from the application. At such hearing the 3rd, 4th and 6th defendants shall be at liberty, if so advised, to take any steps they deem appropriate for their defence on the merits of the application. It will also be open to them at such hearing to contend that they could only be liable for disobedience of the court order only if such had occurred after the date the court below had found that form 49 was served on each of them. I strike out the appeal of the Attorney-General. The 2nd and 5th defendants/appellants and the 3rd, 4th and 6th defendant/appellants are entitled to costs of this appeal which I assess at N10,000 to each of the two sets of appellants. There is no order as to costs in regard to the 1st defendant/appellant’s appeal.

SC. 102/1997